Wisconsin Powers of Attorney Authority and Documents Attorney

Wisconsin Powers of Attorney: Authority and Documents Attorney Grace Knutson Wisconsin Guardianship Support Center Greater Wisconsin Agency on Aging Resources, Inc. (GWAAR)

2 What Will Be Discussed Today? Core Concepts in Legal Decisionmaking Power of Attorney (POA) Basics Types Agents: Powers, duties, selection Stages Common Scenarios and Questions

3 Core Concepts Self-determination, a person’s own right to decide for himself or herself, is innate. Recognition of this: Any person 18 and over is presumed to be able to manage his or her own financial and personal affairs. This presumption remains, including if the adult has a disability, unless the person is found incompetent by the court.

4 Core Concepts Wisconsin is not a “next of kin” or “family consent” state This means that an adult family member generally cannot make decisions for another adult family member without having the specific authority given to that family member by the court or the specific adult family member (i. e. , POA).

5 Core Concepts What is a power of attorney (POA)? A legal document signed by a person (principal) to give another person (agent) the ability and legal authority to act on behalf of the signer

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7 Order of Restrictiveness Self Guardians hip POA Rep. Payee* Conservat or*

8 Powers of Attorney

9 Types of Powers of Attorney for Health Care A legal document that allows the agent to handle matters related to the principal’s health care Powers of Attorney for Finance A legal document that allows the agent to handle matters related to the principal’s finances and property

10 What does “Durable POA” mean? Authority of an Agent to act remains after incapacity

11 Powers of Attorney: Basic Concepts Why one may want a Power of Attorney? Written and legal expression of and reflection of personal wishes if incapacitated Selection of own decision-maker Avoidance of a guardianship Avoid conflict or confusion Nomination of guardian if a guardian is needed Affordable: whether by an attorney or on one’s own Creation and execution can be done (fairly) quickly

12 Agent’s Authority What kind of decisions may an agent make if acting under a Power of Attorney?

13 Agent’s Authority All agents: must according to the principal’s expressed wishes (and the law). If the principal’s wishes are not known, then the agent must act in manner reflective of the principal’s best interests and the law.

14 Health Care Agent’s Authority The agent may: Make health care-related decisions only Make end-of-life treatment decisions if specified in HCPOA Consent to nursing home or CBRF admission if specified in HCPOA

15 HCPOA Agent’s Authority The agent may not: Consent to the principal’s admission into certain facilities; Consent to certain types of mental health treatment; and Act in manner inconsistent with the principal’s expressed wishes, HCPOA, or the law

Financial Agent’s Authority 16 Power of Attorney for Finances (POAF): Some powers are generally given while others must be expressly given. You choose what powers you want your agent to have.

POAF Agent’s Authority 17 Generally designated powers include the power to manage the following: • • • Real property, Digital property Personal property, Stocks and bonds, Bank accounts, The operation of entity or business, • Estates, trusts, and other beneficial interests, • Claims and litigation, • Personal/family maintenance, • Benefits, • Retirement plans, and • Taxes.

18 POAF Agent’s Authority Powers not included unless expressly and clearly stated: Create/amend/revoke, /terminate an inter vivos trust, Gifting, Create/change rights of survivorship or beneficiary designation, Delegate authority granted under the power of attorney, Waive the principal's right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan, Exercise fiduciary powers that only the principal has authority to delegate, and Disclaim property.

19 Selection of Agents Are there any skills or traits that I should think about when I am choosing who I want my agent to be? May I choose more than one agent or have a back-up agent?

20 Selection of Agents- Traits & Skills Trust General appropriateness Particular skills Advocacy skills Location

21 Selection of Agents- Traits & Skills Legal Prohibition: HCPOA agent cannot be employee of health care provider if not related POAF and HCPOA agents do not have to be the same person.

22 Selection of Agents A successor/alternate agent (or agents) can be chosen for either type of POA. “successor” agents for POAFs “alternate” agents for HCPOAs

23 Selection of Agents Having co-agents is not generally recommended for either type of POA, even if agreement of agents is required in the POA. Common issue: What if agents cannot agree and an act needs to be performed? Legal ambiguity about validity for HCPOA co-agents.

Important POA stages 24 Four key terms when considering process of POAs Execution Activation Deactivation Revocation

25 Execution: Legal action of the principal consenting to terms of POA and signing the document. The principal must be “sound of mind” at the time of execution. Each POA has specific rules about how to execute each type of document.

26 Execution Power of Attorney for Health Care: Signed by principal, OR Signed by an adult at the principal’s express direction and in his or her presence Signed in presence of 2 disinterested witnesses Witnesses must sign

27 Execution Power of Attorney for Finance: Signed by principal, OR Signed by another adult upon the principal's direction and his or her “conscious presence” Not required to be notarized (but strongly recommended) No witnessing requirement

28 Steps Post Execution Inform your agent(s) of his or her position and discuss with your agent(s) your wishes. Inform appropriate third parties of POA and consider whether to provide copies. Keep a list of all parties given a copy of the POA(s).

29 The Traveling Principal POA for Health Care Recognized in WI if: Executed according to laws of foreign state AND Agent authority complies with WI law POA for Finance Recognized in WI if: Complies with law of jurisdiction that determines the meaning and effect Meets requirements for a military power of attorney under 10 USC 1044 b.

30 Common Issue 1. Execution of POA Mr. Rogers executed his own POA. He believes he has a valid POA, but it does not appear to have been executed correctly. It was signed by 1 witness and it was notarized. Is this a valid POA?

31 Common Issue: Execution of POA, cont’d What type of POA does Mr. Rogers have? POA-HC: Invalid Needs 2 witnesses POA-F: Valid but problematic: If it is a POA-F, there is no need to have any witnesses beyond the notary. If it is a POA-F, while notarization is not required, the presumption of genuineness exists when notarized. See Wis. Stat. § 244. 05.

32 Activation Process giving the agent authority to act. POA does NOT take effect at POA takes effect upon signing the time of signing Most POAHCs and some POAFs are activated only if (and when) the principal is determined to be incapacitated and other necessary steps are performed. Immediate Springing

33 Common Issue: Activation Ms. White had a severe allergic reaction to the pesticide found on the skin of an apple she ate. She is now in a coma. She has both a POA-HC and POA-F. Assuming she adopted the standard provisions, how can these documents be activated so her agents can act?

34 Common Issue: Activation, cont’d Ms. White’s POA-HC: Two doctors have opined that Ms. White is incapacitated and have signed a statement of incapacity. The POA-HC agent has been notified and the agent may now act. Ms. White’s POA-F: Ms. White’s POA-F was activated upon her signing the document. There is no separate need for her to be declared incapacitated to activate the POA-F.

35 Deactivation Process that shows the principal has regained his or her capacity after being declared incapacitated for POA purposes No legal requirement stating a POA must be formally deactivated exists. Why may you want to consider a formal deactivation? Clarifies state and removes questions about incapacity

36 Common Issue: Deactivation & Revocation During a hospital visit with Mr. Charming, Ms. White woke from her coma and had a miraculous recovery. She is no longer incapacitated. How does she deactivate her POAs? Does she need to revoke her POAs?

37 Common Issue: Deactivation & Revocation, Deactivation and Ms. White’s POA-HC: The 2 physicians that declared Ms. White incapacitated signed a statement saying that, in their medical opinion, she is no longer incapacitated. A copy of that statement was provided to her agent and other health care providers and was included with her medical records. Ms. White’s POA-F: Because her POA-F was activated upon signing, Ms. White does not have to do anything – her incapacity and regained capacity do not have an effect on the POA-F.

38 Revocation I am not happy with my POA agent (or POA). I want to revoke my POA. How do I do this?

39 Revocation Power of Attorney for Health Care: Revocation: at any time and may revoke by: Canceling, defacing, obliterating, burning, tearing or otherwise destroying the power of attorney for health care instrument or directing another in the presence of the principal to so destroy the power of attorney for health care instrument. **Executing a statement, in writing, that is signed and dated by the principal, expressing the principal's intent to revoke the power of attorney for health care. Verbally expressing the principal's intent to revoke the power of attorney for health care, in the presence of 2 witnesses. Executing a new HCPOA instrument.

40 Revocation Power of Attorney for Finance: Revocation: at any time – law states agent’s authority terminates when “principal revokes authority” **Recommended: Draft and sign short statement revoking agent’s authority and provide copies of statement to appropriate parties, including the agent Execution of new POAF does not revoke prior POAF unless expressly stated.

41 Changes to POA Post Execution Changes made by hand or an addendum would be invalid Clearly revoke the old POA and execute a new POA naming the new agent

42 Common Issue: Post. Execution Changes Ms. Dory is competent but is sometimes forgetful. When she executed her POA, she forgot that she wanted to name her adult stepson, Nemo, as a successor agent. Can she handwrite his name on the POA and designate him as a successor agent?

43 Common Issue 4: Post-Execution Changes, cont’d No, Ms. Dory cannot simply add a new agent to be the POA-F agent. New agents, new powers, crossed off old agents and powers, and other significant changes cannot be done. While the addition/removal may not invalidate the entire POA, the change is invalid. What to do? Clearly revoke the old POA and execute a new POA naming Nemo as the alternate agent

44 Common Issue: When a POA Is Not Enough Consider: Revocation Principal’s capacity to execute new POA-F Alternate agent? Petition the court for review of the agent’s conduct Guardianship criminal and civil suit to recover money

45 Common Issue 7: When is a POA Not Enough, Divorce Nick Parker and Elizabeth James-Parker were married when he executed a POA-HC. Mr. Parker named his wife as the agent. No alternate agent was named. The couple has since divorced. Mr. Parker was injured in a camping accident and he is now deemed incapacitated. May Ms. James (f/k/a James-Parker) act as the agent?

46 Common Issue 7: When is a POA Not Enough, Divorce, cont’d The ex-wife cannot act as agent under the POA-HC. Her authority to act became invalid upon their divorce. In this case, there is no alternate agent, so guardianship may need to be considered. Per statute, “the power of attorney for healthcare is revoked and the power of attorney for health care instrument is invalid. ” Wis. Stat. § 155. 40(2).

47 Common Issue 8: The Traveling Principal Ms. Hall travels frequently between her (inherited) spring and summer residence in Wisconsin and her winter residence in Florida. Within the last five years, Ms. Hall executed a POA in Florida. During her most recent visit to Wisconsin, she became ill and was deemed incapacitated. How is her POA treated in Wisconsin?

48 Common Issue 8: The Traveling Principal, cont’d Ms. Hall’s POAs: Assuming Ms. Hall’s POA – HC was validly executed and the authority needing to be exercised is allowed by Wisconsin law and provided by her POA-HC, then it may be followed as it was drafted. Her POAF may also be followed to the extent it is valid and consistent with Florida’s law (if named).

49 QUESTION S?

50 Guardianship Support Center The Wisconsin Guardianship Support Center (GSC) is a statewide information resource that works with vulnerable adults, their families and friends, guardians and other legally authorized representatives, and professionals working with vulnerable adults. Through a toll-free helpline, the GSC provides information on the following subjects: Guardianships, Powers of attorney, Protective placement, Other advance directives, and More. Other services include a free quarterly newsletter, other publications, an APS listserv available to professionals working with vulnerable adults, and presentations on these topics throughout the state

Note: Use of this Presentation: THIS POWERPOINT MAY BE USED AS A REFERENCE TOOL BY THOSE WHO ATTENDED THIS PRESENTATION. THIS POWERPOINT IS NOT INTENDED FOR GENERAL CONSUMER USE, AND IT MAY NOT BE USED AS PART OF ANY OTHER PRESENTATION WITHOUT THE EXPRESS WRITTEN PERMISSION OF THE WI GUARDIANSHIP SUPPORT CENTER.